MEDICAL MARIJUANA
STORES
OPENING ILLEGALLY

At least 15 operating in San Diego despite violating zoning laws

When it comes to medical marijuana dispensaries in San Diego, the city might consider putting up a “Welcome to the Wild West” sign because that may be the most accurate description of the current state of affairs.

No rules. No regulations. No oversight.

At least 15 dispensaries are operating illegally within city limits as San Diego leaders attempt a second swing at implementing an ordinance that would provide a path to legitimacy for those businesses.

At the center of it all is Mayor Bob Filner. A strong proponent of marijuana use for medicinal purposes, the mayor has effectively stopped enforcement of the city’s zoning laws as they pertain to dispensaries. That has led to a renewed proliferation of dispensaries throughout the city after more than 100 were shuttered through city prosecutions during the previous two years.

The bottom line is dispensaries aren’t legally permissible in any land-use zone in the city, and those that are open are in violation. Dozens of complaints have been filed with the city, yet no action has been taken since January when Filner ordered police and code compliance officers to stop investigating dispensaries.

Filner backtracked a few weeks later and issued a statement Jan. 29 with City Council President Todd Gloria and City Attorney Jan Goldsmith saying a new ordinance is coming but until it’s adopted no dispensaries would be allowed.

“In order to preserve the status quo, the current zoning laws will be enforced,” they wrote. “Dispensaries should not open in violation of existing laws.”

Despite that statement, the city isn’t enforcing the law. The City Attorney’s Office hasn’t prosecuted a single dispensary since January because no cases have been forwarded by the Police Department or Neighborhood Code Compliance, both of which investigate complaints and are under Filner’s purview.

A U-T San Diego reporter obtained a list of medical marijuana dispensaries and visited them last week. Fifteen were open for business in the neighborhoods of La Jolla, North Park, Pacific Beach, Point Loma and University Heights. None of the owners or managers were willing to be interviewed.

Ryan Collier, a volunteer at Patient Med Aid in Pacific Beach, said dispensaries have always worried about crackdowns by federal authorities, but there is less concern now that the city will come knocking on their doors.

“We finally have a mayor who understands, is a little more educated on the issue,” he said.

Collier later added that the city needs to stop delaying and set the rules. “It seems like a lack of the city doing its job. You know we voted for this. Obviously, the people want it, so make an ordinance. It’s not up to us. It’s up to them to make an ordinance.”

Filner didn’t respond to requests for comment Thursday and Friday. He has repeatedly insisted that he is enforcing the law despite mounting evidence to the contrary.

Alex Kreit, a Thomas Jefferson School of Law professor who chaired the city’s Medical Marijuana Task Force, said the current state of unregulated dispensaries could provide the “kick in the pants” the City Council needs to finally adopt an ordinance that sets forth clear rules and regulations for the businesses. He also noted city leaders created this situation by not acting sooner.

“They only have to look in the mirror to find who to blame,” Kreit said.

City Attorney Jan Goldsmith, who has been at loggerheads with Filner for months, said the issue of enforcing the city’s zoning laws has nothing to do with the pros or cons of medical marijuana but is rather a question of fairness.

“Why does one group have to follow the law on zoning and other local ordinances, but another group gets a pass?” Goldsmith said. “… We’re supposed to be under the rule of law so everybody has the same rules or is it special privileges if you have friends in high places?”

That’s the same argument dispensary opponents are making.

Scott Chipman, with San Diegans for Safe Neighborhoods, a group that opposes dispensaries, told a council committee that if the city is unwilling to shut down illegal businesses it creates skepticism about everything the city does.

“It’s important that you do your duty,” he said. “Close these illegal businesses. If I opened a hot dog stand on Mission Boulevard, I’d be closed down within hours. But these stores are operating at will month after month and they’re endangering our community.”

Eugene Davidovich, local coordinator with the group Americans for Safe Access, a pro-medical marijuana group, said he disagrees with the premise that dispensaries are currently illegal. The zoning laws don’t address them in any way, he said, and the City Council voted unanimously in April to craft an ordinance that would allow them to operate.

Davidovich called those running dispensaries “admirable and courageous” for providing a service to needy patients at great personal risk to their businesses.

“The reason we have so many (dispensaries) out there is because there is a need for sick and dying people to have a place to walk into with safe and reliable access to marijuana,” he said.

Most of the open dispensaries visited by the U-T were nondescript and low-key with no outward sign that the location sells medical marijuana. About half had security guards on the premises (pot shops are frequent targets for robbers). One dispensary in Point Loma, which was closed, had a “Bob Filner for Mayor 2012” sign on the building.

Council members have also expressed concern with the lawlessness regarding dispensaries.

“The mayor agreed with the council to enforce the existing laws and regulations. That was very clear,” said Councilman Kevin Faulconer. “I don’t understand why he’s not doing that.”

Through a spokeswoman, council President Todd Gloria blamed the enforcement stalemate on the ongoing conflict between Filner and Goldsmith. He also made it clear that any dispensaries currently operating won’t be grandfathered in under whatever rules are eventually put in place by the council.

Marijuana is illegal under federal law, but state voters approved its use for medicinal purposes in 1996. The city has wrestled with creating a zoning ordinance for marijuana dispensaries for years.

Enacting an ordinance is easier said than done. The council in 2011 passed one that was repealed after medical pot advocates gathered enough signatures to trigger a public vote.

In April, the council revived the failed 2011 ordinance with minor changes rather than support a new proposal by Filner. The City Attorney’s Office has drafted the new proposed ordinance and it is set for public review over the next several weeks. No date has been set for a final council vote.

The proposal would limit dispensaries to some commercial and industrial zones and require them to be at least 1,000 feet from each other as well as schools, playgrounds, libraries, child care and youth facilities, parks and churches. They also must operate as nonprofits, have curtailed business hours and hire security guards.